Protecting Senior Citizens from Their Mail

Protecting Senior Citizens from Their Mail: The Growing Threat of Direct Mail Solicitation at Senior Living Communities

By: Mike Sikora, Volume 101 Staff Member

Many of us hear stories of scammers targeting the elderly: fake grandsons trapped in jail, fake nieces stranded at airports, and fake friends offering a chance to make a quick buck. Legislatures across the country have targeted these telephone scams,[1] but most have failed to address the threat posed by direct mail solicitations. Though often treated as an outdated form of communication, direct mailing has recently become a more effective tool for questionably legitimate solicitors targeting the elderly. The growth of senior living communities has inadvertently provided these solicitors with a susceptible, easily identifiable audience, making mass mailing strategies much more cost-effective.

The cost of a single letter, $0.49,[2] seems minor at first glance, but it actually impedes most mass mailing efforts. For the mailing effort to be successful, the average revenue per letter must exceed $0.49 plus the labor and printing costs.[3] Mass mailing works well for expensive, widely desirable products or services such as cable television:[4] the high cost reduces the response rate necessary for profitability, and the product’s desirability ensures that the mailing achieves that response rate. Because mass mailings for questionably legitimate solicitations have a low chance of getting a response from the general population, they usually prove unprofitable.[5]

Nevertheless, the growth of senior living communities allows solicitors to target a vulnerable subset of the general population. Because they are often advertised,[6] solicitors need not spend much effort to find a targetable senior living community. Limiting the mailing list to residents of these communities, a group of people more susceptible to clever solicitation, reverses the typical cost/benefit calculation. Targeted mailing greatly reduces the mailing’s cost while the vulnerable population ensures a higher response rate, making direct-mail solicitation cost-efficient when it otherwise would not be.

Questionably legitimate solicitors have exploited the opportunity in very troubling ways. First, they flood residents with an onslaught of demands – not just requests – for money. Anecdotally, in a single week, my grandmother received over thirty requests from questionable, often quasi-political, sources.[7] When I asked whether this was typical, she simply pointed to four or five organizations that she receives mail from at least weekly. One of those organizations sent a letter specifically requesting “a one-time gift of $21,”[8] and then reiterated that request ad nauseum:

If what you can send is exactly $21, believe me, we sure could use it. Because in Washington, there are whispers that 2017 might be the year that benefit cuts are put on the table. And I desperately need your one-time donation of $21 to force Congress to live up to it’s promise to seniors from coast-to-coast.

Won’t you please send your gift of $21 today?

You have my personal guarantee that your donation will go directly into this campaign to force Congress to give seniors a legal guarantee of the payment of their Social Security benefits.

Beyond the quantity and demanding language of the letters, many also contained emotionally provocative language clearly meant to evoke an immediate response:

P.S. If you want my opinion, what’s going on in Washington isn’t just wrong… It’s downright criminal. Senior citizens across the country are struggling. While the politicians in Washington keep trying to come up with new ways to take more money out of their pockets.[10]

Another stated, “Thank you . . . for acting today on this matter of urgent importance to restoring the America you love for your children and grandchildren. Please help!”[11] Using such appeals when targeting a vulnerable population is dubious at best and deceptive at worst, but it may be extreme to call these organizations scammers. After all, the organizations do appear to represent the political causes they assert in the solicitation. This leaves us with an interesting question: despite the questionable language and mailing strategies used, do these direct mail solicitations to seniors actually violate laws?

Unfortunately, no laws, federal or state, directly address this mailing behavior, which makes the answer unclear. Much of the legislation seeks to prevent scams and clearly fraudulent behavior rather than the questionable solicitation practices discussed here.[12] Federal law, for example, prohibits “unfair or deceptive acts or practices in or affecting commerce.”[13] Under a broad interpretation of “deceptive” these targeting mailings to seniors likely fall within the prohibition. And although it may usually be difficult to convince a court to adopt such a broad construction, legislators seem especially interested in protecting seniors. After all, certain states permit higher civil penalties when solicitations directed towards senior citizens do rise to the level of “deceptive.”[14]

With state and federal statutes uncertain to apply to this type of solicitation, however, the existing laws appear incapable of deterring this behavior; they certainly have not deterred it so far. But solving this problem may not be as easy as enacting new laws. The questionable practices used by solicitors skirt the line between dubious and deceptive, making it difficult for any legislation to correctly strike the balance between allowing zealous solicitation and preventing elder abuse. Providing federal or state consumer protection agencies discretion to regulate this behavior would allow more flexibility, but again, it will be difficult to articulate a clear delineation between permissible and illegal solicitation. Private enforcement could be an option, especially if it allowed recovery of attorneys’ fees or a qui tam award, but legislators would have to carefully tailor the statute to properly align incentives with the ultimate goal—protecting senior citizens.

Finding a solution to direct mail solicitation will not be easy, but it is necessary. Seniors face a constant onslaught of these questionable solicitations, so much so that it invades their daily life and taints a daily ritual. Attorneys, judges, regulators and legislators must think carefully about how to solve the problem and move quickly to do so.

See Matthea Ross, Note, Why Are You Calling Me?: The Importance of the Do-Not-Call Registry in Protecting the Elderly from Financial Abuse, 6 Alb. Gov’t L. Rev. 663, 675–76 (2013) (discussing movements by states and the federal government to establish do-not-call registries). ↑

Rate of return increases with sale price and response rate, which means that expensive and widely desired products should result in more profitable mailing campaigns. See Julie Richards, What Is the Average Rate of Return on a Direct Mail Campaign?, Chron, http://smallbusiness.chron.com/average-rate-return-direct-mail-campaign-23974.html (last visited Apr. 23, 2017) (explaining how to calculate rate of return for direct mailing campaigns). ↑

See e.g., Nathalie Martin, Consumer Scams and the Elderly: Preserving Independence Through Shifting Default Rules, 17 Elder L.J. 1, 14 (2009) (“True fraud is against the law, but many other harmful practices are not. Unless and until the law becomes more protective of consumers, such harmful practices must be fought through mechanisms outside the legal system.”). Other legislation focuses on exploitation of elders by caregivers, such as Minnesota’s Vulnerable Adults Act and Deceptive or Unfair Trade Practices; Elderly or Handicapped Victims Act. See Terrie Lewis, Fifty Ways to Exploit Your Grandmother: The Status of Financial Abuse of the Elderly in Minnesota, 28 Wm. Mitchell L. Rev. 911, 915–16 (2001). ↑

See, e.g., Minn. Stat. § 325F.71, subd. 2 (2012) (permitting “an additional civil penalty not to exceed $10,000 for each violation, if . . . the defendant knew or should have known that the defendant’s conduct was directed to one or more senior citizens . . . .”). ↑